Resolution 2011-063
..
RESOLUTION NO. 2011- 63
A RESOLUTION AUTHORIZING THE ACQUISITION BY GIFT OR PURCHASE OF
THOSE PERPETUAL AND TEMPORARY EASEMENT INTERESTS NECESSARY
FOR THE CONSTRUCTION OF STORMWATER IMPROVEMENTS KNOWN AS
THE US-41 DITCH SEGMENT OF THE LEL Y AREA STORMW A TER
IMPROVEMENT PROJECT. (PROJECT NO. 51101.)
WHEREAS, on June 8, 2004, the Board of County Commissioners of Collier County,
Florida adopted Resolution No. 2004-205, authorizing the acquisition by gift or purchase of land
and easements required for the construction of storm water improvements known as the Lely
Area Stormwater Improvement Project ("LASIP"), located in east Naples; and
WHEREAS, since the adoption of the aforesaid resolution several segments of the LASIP
project have been designed and permitted, the land and easements have been acquired, and in
many cases the construction has already been completed; and
WHEREAS, plans and specifications have been prepared for construction of stormwater
improvements known as the US-41 Ditch segment (the "US-41 Ditch") of LA SIP, which require
easements to be acquired before construction may begin; and
WHEREAS, estimates of the cost of easement acquisition required for the US-41 Ditch
have recently been completed; and
WHEREAS, the Board of County Commissioners, after considering the current estimated
cost of acquiring the property rights necessary to begin construction on the US-41 Ditch, desires
to reaffirm the delegation of authority to acquire said easements by gift or purchase; and
WHEREAS, the acquisition of the easements and the construction of the US-41 Ditch
within the boundaries depicted in Exhibit "A", attached hereto and incorporated herein, is in the
best interests of the citizens of Collier County.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that:
I. The Board has determined that construction of storm water improvements known as the
US-41 Ditch segment of the Lely Area Stormwater Improvement Project, Project No. 51101, is
necessary and in the public's best interest in order to protect the health, safety and welfare of the
citizens of Collier County.
2. The acquisition of various easement interests required for the construction of the US-41
Ditch is an integral part of the County's long range planning effort, and is included in the Capital
Improvement Element of the Collier County Growth Management Plan, as approved by the
Florida Department of Community Affairs.
3. It is necessary and in the best interest of Collier County for the Board to authorize the
acquisition of drainage easements and temporary construction easements to enable construction
of stormwater improvements known as the US-41 Ditch within the project boundaries identified
in Exhibit "A" (attached hereto and by reference made a part hereof), and the County Manager or
his designee is hereby authorized and directed to acquire said easements by either gift or
purchase.
4. The Board hereby directs the County Manager or his designee to make purchase offers to
property owners for the easements required to construct foresaid segments of LASIP, which
offers shall be based upon estimates of the market value of the subject real estate which have
been developed by licensed state-certified general real estate appraisers.
5. In view of the differences of opinions between real estate appraisers regarding market
value and full compensation to property owners, and in view of the cost of condemnation, the
Board hereby authorizes the County Manager or his designee to approve purchases of easements
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where the property owner has agreed to sell to the County at, or up to twenty five percent (25%)
above the County's full compensation estimate, with the maximum approval authority not to
exceed $50,000 over the County's appraiser's full compensation estimate, and the Board hereby
authorizes the approval and execution of Closing Statements related to said transactions by the
County Manager or his designee. Any and all purchases in excess of one hundred and twenty-
five percent (125%) of the appraiser's full compensation estimate, or in excess of $50,000 above
the appraiser's full compensation estimate, whichever amount is the lesser of the two, shall
require separate Board approval.
6. The Board hereby authorizes its Chairman, and any subsequent Chairman for the life of
the Project, upon the approval of the Office of the County Attorney as to form and legal
sufficiency, to execute real property conveyance agreements and subordinations of utility
interests incorporating agreements for reimbursement for additional facilities relocation, in
substantially the same form as that Sample Real Property Conveyance Agreement and that
Sample Subordination of Utility Interests and Agreement for Reimbursement for Additional
Facilities Relocation, attached hereto as Exhibits "B" and "C" respectively and made a part
hereof, and/or other documents approved by the Office of the County Attorney to close real
estate transactions, where the property owner has agreed to sell to the County at appraised value,
or within the parameters stipulated in Paragraph 5 (above).
7. Said authority is delegated by the Board to the extent that such delegation does not
conflict with the provisions of Section 125.355, Florida Statutes.
8. The Board hereby authorizes the Finance Department to issue warrants, and/or to make
wire transfers, payable to the property owner(s) of record, to title companies and attorneys
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closing real estate transactions, and to others who may possess an equitable interest in the subject
real property parcels in those amounts as shall be specified on a Closing Statement.
9. All title to real property which has been acquired in the manner described above shall be
deemed "accepted" by the Board of County Commissioners, as the governing body of Collier
County, Florida, a political subdivision of the State of Florida, and as such, staff is hereby
authorized to record in the Public Records of Collier County, Florida, conveyance instruments
such as easements, as well as any other instruments that may be required to remove, release or
subordinate the lien of any encumbrance on the subject real estate, in order to effect constructive
notice of the County's interest in real property.
This Resolution, adopted on this 11 Mil day of ^-<~,{ C H
, 2011, after motion,
second and majority vote.
ATTEST:
D_ WIGHT E_~l~i. .~;q~~,~ERKC
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BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, FLORIDA
By: '1uL w. ~
FRED W. COYLE, CHAI N
Approved as to form and
legal sufficiency: /,\
E. w'R'Gtfrr
ant County Attorney
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EXHIBIT "B"
SAMPLE REAL PROPERTY CONVEYANCE AGREEMENT
THIS AGREEMENT (hereinafter referred to as the "Agreement") is made and
entered into on this day of , 20_, by and between
, whose mailing address is , (hereinafter referred to
as "Owner"), and COLLIER COUNTY, a political subdivision of the State of Florida, whose
mailing address is 3299 Tamiami Trail East, c/o the Office of the County Attorney, Suite
800, Naples, Florida 34112 (hereinafter referred to as "County").
WHEREAS, County requires an Easement over, under, upon and across the lands
described in Exhibit "A", which is attached hereto and made a part of this Agreement
(hereinafter referred to as the "Easement"); and
WHEREAS, Owner desires to convey the Easement to County for the stated
purposes, on the terms and conditions set forth herein; and
WHEREAS, County has agreed to compensate Owner for conveyance of the
Easement.
NOW THEREFORE, in consideration of these premises, the sum of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency of which
is hereby mutually acknowledged, it is agreed by and between the parties as follows:
1. All of the above RECITALS are true and correct and are hereby expressly
incorporated herein by reference as if set forth fully below, and all Exhibits referenced
herein are made a part of this Agreement.
2. Owner shall convey the Easement to County for the sum of:
$
subject to the apportionment and distribution of proceeds pursuant to Paragraph 9 of
this Agreement (said transaction hereinafter referred to as the "Closing"). Said
payment to Owner, payable by County Warrant or funds wire transfer, shall be full
compensation for the Easement conveyed, including all landscaping, trees, shrubs,
improvements, and fixtures located thereon, and shall be in full and final settlement
of any damages resulting to Owner's remaining lands, costs to cure, including but not
limited to the cost to relocate the existing irrigation system and other improvements,
and the cost to cut and cap irrigation lines extending into the Easement, and to
remove all sprinkler valves and related electrical wiring, and all other damages in
connection with conveyance of said Easement to County, including all attorneys'
fees, expert witness fees and costs as provided for in Chapter 73, Florida Statutes.
3. Prior to Closing, Owner shall obtain from the holders of any liens, exceptions and/or
qualifications encumbering the Easement, the execution of such instruments which
will remove, release or subordinate such encumbrances from the Easement upon
Page 2
their recording in the public records of Collier County, Florida. At or prior to Closing,
Owner shall provide County with a copy of any existing prior title insurance policies.
Owner shall cause to be delivered to County the items specified herein and the
following documents and instruments duly executed and acknowledged, in
recordable form (hereinafter referred to as "Closing Documents") on or before the
date of Closing:
(a) Easement;
(b) Closing Statement;
(c) Grantor's Non-Foreign, Taxpayer Identification and "Gap" Affidavit;
(d) W-9 Form; and
(e) Such evidence of authority and capacity of Owner and its representatives to
execute and deliver this agreement and all other documents required to
consummate this transaction, as reasonably determined by County, County's
counsel and/or title company.
4. Both Owner and County agree that time is of the essence. Therefore, Closing shall
occur within ninety (90) days from the date of execution of this Agreement by the
County; provided, however, that County shall have the unilateral right to extend the
term of this Agreement pending receipt of such instruments, properly executed, which
either remove or release any and all such liens, encumbrances or qualifications
affecting County's enjoyment of the Easement. Such right to extend may be
exercised by the County Manager or his designee for an additional term not
exceeding ninety (90) days without further Board action. All additional extensions
must be Board approved. At Closing, payment shall be made to Owner in that
amount shown on the Closing Statement as "Net Cash to the Seller," and Owner
shall deliver the Closing Documents to County in a form acceptable to County.
5. Owner agrees to relocate any existing irrigation system located on the Easement
including irrigation lines, electrical wiring and sprinkler valves, etc., prior to the
construction of the project without any further notification from County. Owner
assumes full responsibility for the relocation of the irrigation system on the remainder
property and its performance after relocation. Owner holds County harmless for any
and all possible damage to the irrigation system in the event owner fails to relocate
the irrigation system prior to construction of the project.
If Owner elects to retain improvements and/or landscaping ("Improvements") located
on the Easement, the Owner is responsible for their retrieval prior to the construction
of the project without any further notification from County. Owner acknowledges that
County has compensated Owner for the value of the Improvements and yet County
is willing to permit Owner to salvage the Improvements as long as their retrieval is
performed before construction and without interruption or inconvenience to the
County's contractor. All Improvements not removed from the Easement prior to
Page 3
commencement of construction of the project shall be deemed abandoned by
Owner.
This provision shall survive Closing and is not deemed satisfied by conveyance of
title.
6. Owner and County agree to do all things which may be required to give effect to this
Agreement immediately as such requirement is made known to them or they are
requested to do so, whichever is the earlier.
7. Owner agrees, represents and warrants the following:
(a) Owner has full right, power and authority to own and operate the property
underlying the Easement, to enter into and to execute this Agreement, to
execute, deliver and perform its obligations under this Agreement and the
instruments executed in connection herewith, to undertake all actions and to
perform all tasks required of Owner hereunder and to consummate the
transaction contemplated hereby.
(b) County's acceptance of the Easement shall not be deemed to be full
performance and discharge of every agreement and obligation on the part of
Owner to be performed pursuant to the provisions of this Agreement.
(c) No party or person other than County has any right or option to acquire the
Easement or any portion thereof.
(d) Until the date fixed for Closing, so long as this Agreement remains in force
and effect, Owner shall not encumber or convey any portion of the property
underlying the Easement or any rights therein, nor enter into any agreements
granting any person or entity any rights with respect to the Easement,
without first obtaining the written consent of County to such conveyance,
encumbrance, or agreement, which consent may be withheld by County for
any reason whatsoever.
(e) There are no maintenance, construction, advertising, management, leasing,
employment, service or other contracts affecting the Easement.
(f) Owner has no knowledge that there are any suits, actions or arbitration,
administrative or other proceedings or governmental investigations or
requirements, formal or informal, existing or pending or threatened which
affect the Easement or which adversely affect Owner's ability to perform
hereunder; nor is there any other charge or expense upon or related to the
Easement which has not been disclosed to County in writing prior to the
effective date of this Agreement.
(g) County is entering into this Agreement based upon Owner's representations
stated in this Agreement and on the understanding that Owner will not cause
the physical condition of the property underlying the Easement to change
Page 4
from its existing state on the effective date of this Agreement up to and
including the date of Closing. Therefore, Owner agrees not to enter into any
contracts or agreements pertaining to or affecting the property underlying the
Easement and not to do any act or omit to perform any act which would
adversely affect the physical condition of the property underlying the
Easement or its intended use by County.
(h) The property underlying the Easement, and all uses of the said property,
have been and presently are in compliance with all Federal, State and Local
environmental laws; that no hazardous substances have been generated,
stored, treated or transferred on the property underlying the Easement
except as specifically disclosed to the County; that the Owner has no
knowledge of any spill or environmental law violation on the property
contiguous to or in the vicinity of the Easement to be sold to the County, that
the Owner has not received notice and otherwise has no knowledge of: a)
any spill on the property underlying the Easement; b) any existing or
threatened environmental lien against the property underlying the Easement;
or c) any lawsuit, proceeding or investigation regarding the generation,
storage, treatment, spill or transfer of hazardous substances on the property
underlying the Easement. This provision shall survive Closing and is not
deemed satisfied by conveyance of title.
8. Owner shall indemnify, defend, save and hold harmless the County against and from,
and reimburse the County with respect to, any and all damages, claims, liabilities,
laws, costs and expenses (including without limitation reasonable paralegal and
attorney fees and expenses whether in court, out of court, in bankruptcy or
administrative proceedings or on appeal), penalties or fines incurred by or asserted
against the County by reason or arising out of the breach of any of Owner's
representations under paragraph 7(h). This provision shall survive Closing and is not
deemed satisfied by conveyance of title.
9. County shall pay all fees to record any curative instruments required to clear title, and
all Easement instrument recording fees. In addition, County may elect to pay
reasonable processing fees required by mortgagees in connection with the execution
and delivery of a Release or Subordination of any mortgage, lien or other
encumbrance recorded against the property underlying the Easement; provided,
however, that any apportionment and distribution of the full compensation amount in
Paragraph 2 which may be required by any mortgagee, lien-holder or other
encumbrance-holder for the protection of its security interest, or as consideration due
to any diminution in the value of its property right, shall be the responsibility of the
Owner, and shall be deducted on the Closing Statement from the compensation
payable to the Owner per Paragraph 2.
10. There shall be deducted from the proceeds of sale all prior year ad valorem taxes
and assessments levied against the parent tract property which remain unpaid as of
the date of Closing. Furthermore, in accordance with the exemptions provided for in
Section 201.01, Florida Statutes, concerning payment of documentary stamp taxes
Page 5
by County, Owner shall pay all documentary stamp taxes required on the
instrument(s) of transfer.
11. This Agreement and the terms and provisions hereof shall be effective as of the date
this Agreement is executed by both parties and shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors, personal
representatives, successors, successor trustees, and/or assignees, whenever the
context so requires or admits.
12. If the Owner holds the property underlying the Easement in the form of a partnership,
limited partnership, corporation, trust or any form of representative capacity
whatsoever for others, Owner shall make a written public disclosure, according to
Chapter 286, Florida Statutes, under oath, subject to the penalties prescribed for
perjury, of the name and address of every person having a beneficial interest in the
property underlying the Easement before the Easement held in such capacity is
conveyed to County. (If the corporation is registered with the Federal Securities
Exchange Commission or registered pursuant to Chapter 517, Florida Statutes,
whose stock is for sale to the general public, it is hereby exempt from the provisions
of Chapter 286, Florida Statutes.)
13. Conveyance of the Easement, or any interest in the property underlying the
Easement, by Owner is contingent upon no other provisions, conditions, or premises
other than those so stated herein; and this written Agreement, including all exhibits
attached hereto, shall constitute the entire Agreement and understanding of the
parties, and there are no other prior or contemporaneous written or oral agreements,
undertakings, promises, warranties, or covenants not contained herein. No
modification, amendment or cancellation of this Agreement shall be of any force or
effect unless made in writing and executed and dated by both Owner and County.
14. Should any part of this Agreement be found to be invalid, then such invalid part shall
be severed from the Agreement, and the remaining provisions of this Agreement
shall remain in full force and effect and not be affected by such invalidity.
15. This Agreement is governed and construed in accordance with the laws of the State
of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
AS TO COUNTY:
DATED:
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
Deputy Clerk
I Chairman
Page 6
AS TO OWNER:
DATED:
Witness (Signature)
Name (Print or Type)
Witness (Signature)
Name (Print or Type)
Approved as to form and
legal sufficiency:
Assistant County Attorney
Last Revised: 10/15/10
EXHIBIT "C"
SAMPLE SUBORDINATION OF UTILITY INTERESTS AND AGREEMENT
FOR REIMBURSEMENT FOR ADDITIONAL FACILITY RELOCATIONS
THIS AGREEMENT, entered into this _ day of , 20-, by and between COLLIER COUNTY,
a political subdivision of the State of Florida (hereinafter referred to as "County"), and !NAME OF UTILITY
PROVIDER] (hereinafter referred to as "Utility").
WIT N ESE T H:
WHEREAS, the Utility presently has an interest in certain lands that have been determined necessary for
highway purposes; and
WHEREAS, the proposed use of these lands for highway purposes will require subordination of the
interest claimed in such lands by Utility to the County; and
WHEREAS, the County is willing to pay for the initial relocation of the Utility's facilities within the
public right-of-way to prevent conflict between the County's use and the Utility's use, and for the benefit of each,
and
WHEREAS the County, in recognition of the Utility's interest in the certain lands, is willing to pay for any
future relocation of the Utility's facilities from or within the entire width of the public right-of-way shown on
Exhibit "A", attached hereto and made a part hereof,
NOW, THEREFORE, in consideration of the mutual covenants and promises of the parties hereto, Utility
and the County agree as follows:
UTILITY subordinates any and all of its interest in its easement lands described on "EXHIBIT A"
attached hereto and made a part hereof, to the interest of the County, or its successors, for the purpose of
constructing, improving, maintaining and operating a road over, through, upon, and/or across such lands, based on
the following:
NATURE OF DATE FROM OR AGAINST IN FAVOR OF RECORDED
ENCUMBRANCE BOOK, PAGE
The County and the Utility further agree that:
I. "Public right-of-way", as used herein, shall mean that area which is described in Exhibit "A" and which
includes the Utility's easements identified above and additional lands for public right-of-way, as described
in Exhibit "A", attached hereto and made a part hereof.
2. The Utility shall have the right to construct, operate, maintain, improve, add to, upgrade, remove, and
relocate facilities on, within, and upon the public right-of-way described in Exhibit "A", in accordance
with the County's current minimum standards for such facilities as of the date ofthis agreement. Any new
construction or relocation of facilities within the public right-of-way will be subject to prior approval by
the County.
3. The County shall pay for the relocation of existing facilities. In addition, the Utility retains the right to be
reimbursed, either now or in the future, for additional relocation or adjustment of its facilities located
presently or to be located on the public right-of-way described in Exhibit "A", if such relocation or
adjustment is caused by present or future uses of the right-of-way by the County or its assigns, including,
but not limited to, the cost of acquiring replacement easements.
4. The Utility shall have the right to enter upon the lands described in Exhibit "A" for the purposes outlined
in Paragraph 2 above, including the right to trim such trees, brush, and growth which might endanger or
interfere with such facilities. The County shall provide and insure access to said lands by the Utility.
5. The Utility agrees to repair any damage to County facilities and to indemnify the County against any loss
or damage resulting from the Utility exercising its rights to construct, operate, maintain, improve, add to,
upgrade or remove its facilities on the said public right-of-way.
6. This Agreement shall not be assigned by the County except to the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Subordination of Utility Interests and
Agreement for Reimbursement for Additional Facility Relocations on the day and year first above written.
ATTEST:
DWIGHT E. BROCK, Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY:
, Deputy Clerk
, CHAIRMAN
Signed, sealed and delivered
in the presence of:
By:
By:
Title:
Print Name:
Print Name:
By:
Print Name:
(Corporate Seal)
2
Utility Subordination Agreement
STATE OF
COUNTY OF
I hereby certifY that on this day, before me, an officer duly authorized to take acknowledgements,
personally appeared , to me known and personally known to me to be the person described
in, and did not take an oath and who executed the foregoing instrument as the of
and acknowledged before me that he executed the same as such official in the
name and on behalf of said Corporation.
WITNESS my hand and official seal in the County and State aforesaid this _ day of
,20_.
(affix notarial seal)
(Signature of Notary Public)
(Print Name of Notary Public)
Serial! Commission # (if any):
My Commission Expires:
Approved as to form and
legal sufficiency:
Assistant County Attorney
3
Utility Subordination Agreement
ARTICLE 14. Notices
Any notice which LESSOR or LESSEE may be required to give to the other party shall be in
writing to the other party at the following addresses:
LESSOR:
Board of County Commissioners
c/o Real Property Mgmt. Dept.
3335 East Tamiami Trail, Suite 101
Naples, Florida 34112
LESSEE:
Congressman David Rivera
4715 Golden Gate Parkway
Naples, Florida 34112
cc: Office ofthe County Attorney
Facilities Management Department Director
ARTICLE 15. Surrender of Premises
LESSEE shall deliver up and surrender to LESSOR possession of the Demised Premises at the
termination of this Lease, or its earlier termination as herein provided, broom clean and in as good
condition and repair as the same shall be at the commencement of the term of this Lease or may have
been put by LESSOR or LESSEE during the continuance thereof, ordinary wear and tear and damage by
fire or the elements beyond LESSEE'S control excepted.
ARTICLE 16. General Provisions
LESSEE expressly agrees for itself, its successor and assigns, to refrain from any use of the
Demised Premises which would interfere with or adversely affect the operation or maintenance of
LESSOR'S standard operations where other operations share common facilities.
(a) Rights not specifically granted the LESSEE by this Lease are hereby reserved to the LESSOR.
(b) LESSEE agrees to pay all sales tax imposed on the rental of the Demised Premises where
applicable under law.
(c) LESSEE agrees to pay all intangible personal property taxes that may be imposed due to the
creation, by this Lease, of a leasehold interest in the Demised Premises or LESSEE'S possession
of said leasehold interest in the Demised Premises.
ARTICLE 17. Environmental Concerns
LESSEE represents, warrants and agrees to indemnify, reimburse, defend and hold harmless
LESSOR, from and against all costs (including attorneys fees) asserted against, imposed on or incurred
by LESSOR directly or indirectly pursuant to or in connection with the application of any federal, state,
local or common law relating to pollution or protection of the environment.
ARTICLE 18. Radon Gas
In compliance with Section 404.056, Florida Statutes, all parties are hereby made aware of the
following:
Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in buildings in Florida. Additional
information regarding radon and radon testing may be obtained from your County Public Health
Department.
ARTICLE 19. Extent of Liens
All persons to whom these nresents m~v ~nmf' ",.p ""t "",,., .,,,t;,..,,, ~f't1.", ~~~. .1.._. .1.._ ,_.__u, _f'
IN WITNESS WHEREOF, the parties hereto have hereunder set forth their hands and seals.
AS TO THE LESSOR:
DATED: ~,~ /.1 ~ ~ '"
;.AITE~T~_: -'.
. D~~J:IT it.l1RQ,CK, Clerk
~ - ,. ~'.''..: "'(., .
_. "A'~ .
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tJc..!~I. J''''
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AS TO LESSEE:
~eD: 02 Ie) f //0
4~e).' .
f1onJ'{'(l (lrQ/Je!Aw
(print name) V
-f(~'1 e-71 ;.-/cuVL/l--<.L./t~
WITNESS (SigoaiA
/(orUJ' OrmlJt1
(print name)
Approved as to form and legal sufficiency:
Jennifer B. ~;"~~~ty Attorney
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
BY, ~W. ~
FRED W. COYLE, Chairman '
?;J~
BY:~
CONGRESSMAN DAVID RIVERA
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